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Questions and Answers Journal of Criminal Law and Criminology Volume 35 | Issue 4 Article 8 1945 Questions and Answers Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Questions and Answers, 35 J. Crim. L. & Criminology 264 (1944-1945) This Correspondence is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. QUESTIONS & ANSWERS' Rollin M. Perkins and Charles L 7. Meyer (Guest Editors) Question 1: What is the difference between an accessory and an accomplice? Answer: Each word has reference to one of the guilty parties to a crime involving two or more offenders. But whereas each of such parties is an accomplice, many of them are not accessories. As already pointed out the term accessory is applied only in cases of felony, and does not apply even in a felony case to one who was actually or constructively present at the moment of its perpetration. The word accomplice, on the other hand is used whether the crime involved is treason, felony, or misdemeanor, and without reference to presence or absence at the moment of perpetration. An "accomplice" is an associate or companion in crime. Some authori- ties have used the word in a sense so broad as to include all guilty parties to the same offense. The more sound usage limits it to those whose guilt has been connected with the commission of the crime. This includes prin- cipals in the first degree, principals in the second degree, and accessories before the fact. It does not include accessories after the fact (but these are included in the broader meaning employed by some courts). It is not out of place to mention also, that while the importance of the word "accessory" is distinctly on the wane, that of "accomplice" appears to be on the upgrade. For example, a rather common statutory provision makes the uncorroborated evidence of an accomplice insufficient for convic- tion of crime. Question 2: What is meant by "legalized murder"? Answer: There is no such thing. It is a phrase employed by persons not familiar with the law. Murder is unlawful homicide committed with malice afore- thought. Hence, if the homicide is "legalized" it cannot be murder. The term is usually used to express a very strong opposition to the law which authorizes homicide in certain situations. Thus, one very much opposed to capital punishment may refer to the execution of a sentence of death as "legalized murder"; and another who has very strong feelings against war may use this expression to designate killings on the field of battle. It would be beyond the scope of this answer to present an argument for or against capital punishment, or for or against war. It must suffce for the moment to say that the phrase "legalized murder" is self-contradictory and hence is to be avoided by those interested in accuracy of expression. Question 8: What is meant by the phrase "without beneft of clergy"? Answer: This phrase is used on the street with a great variety of meanings, such for example, as to represent the sad plight of the unmarried mother. Its original use was in connection with the administration of criminal justice. At a time when the church was very powerful it succeeded in establishing 'Questions one to seven, inclusive, are from Mr. Perkins and the remainder from Mr. Meyer. QUBSTIONS AND ANSWERS the position that no member of the clergy should be tried for felony in the ordinary criminal law courts of the land. Under the ancient procedure, if one of this favored group was indicted for such an offense he had only to assert his "benefit of clergy" and prove his right thereto. Thereupon his case was transferred to the ecclesiastical court for trial and disposition there. In the course of time the procedure changed and the common law courts no longer permitted this privilege to be asserted at the initial stage of the prosecution, but limited it to one who had entered a plea of guilty, or whose guilt had been established by the verdict of a jury. After this change was complete the only effect of benefit of clergy was with reference to the punishment to be inflicted upon one who had been convicted of felony. This, however, was a matter of the utmost significance. It was a basic principle that the church would not impose the punishment of death, and hence he who was entitled to "benefit of clergy" was not capitally punished. All felonies, at common law, were punishable by death and forfeiture of goods. Benefit of clergy, after the change of procedure mentioned, did not protect against forfeiture of goods, but did save the life of the convicted felon. In order that persons convicted of certain felonies should not escape the death pen- alty by this means, it was expressly provided by statute that those convicted of these felonies should be "without benefit of clergy." Hence this phrase, as commonly used, did not refer to persons who did not come within this protection, but to offenses which had been placed beyond its reach by legislation. This is all a matter of history; modern criminal procedure has no such rules. Question 4: Is motive ever an essential element in the commission of crime? Answer: Yes. The books are full of comments to the contrary, but the general statement to the effect that motive is never an essential element in the com- mission of crime is too broad. Like most generalizations it is subject to certain exceptions. In most situations the question of motive is important only as a clue,--to establish who the guilty person may be. A good motive is never sufficient, for exculpation if all of the elements of crime are other- wise established. One, for example, who kills his wife because he loves her and cannot bear to watch her suffer from an incurable disease, is guilty of criminal homicide. But some offenses, for example, have a special mental requirement rep- resented by the word "corruptly." And no inquiry into whether or not a certain thing has been done corruptly can ignore the motive of the doer. Furthermore, the issue of motive may arise in other ways. A rogue may be committing a grave felony under such circumstances that the killing of the felon to prevent this crime would be privileged. One who kills him for that purpose is not guilty of crime. But if at that very moment a gangster should see the rogue, and without even knowing of the rogue's intent to commit a felony, should kill him because he had been wanting to get rid of him, the gangster would be guilty of murder. The intent is the same,--to kill that person. But a killing under those circumstances with that intent is no crime if the motive is to promote justice by preventing the grave felony which is impending, but is murder if the motive is to satisfy an old grudge. Question 5: Can a woman be guilty of rape? Answer: Yes. If a man who intends to commit murder is unwilling to make the QUESTIONS AND ANSWERS effort alone and calls in another to hold the victim while he plunges a knife into his heart, the second is just as guilty of murder as the first, provided he was fully aware of the purpose. For the same reason both men would be guilty of rape if one helped to subdue a woman while another had felonious intercourse with her. This would be equally true even if the "assistant" was a woman. A woman cannot herself commit the act of rape, but she can be guilty of this crime by aiding a man in its perpetration. Question 6: Under what circumstances may crime be justified or excused? Answer: Under no circumstances. As a matter of juridical science there can never be any justification or excuse for crime. Under many circumstances a deed which would otherwise be criminal may be justified or excused; but what is justified or excused is not a crime. For example, one man inten- tionally kills another. This at once suggests a crime on his part, but he insists that the other made a murderous assault upon him and that he was forced to kill in the defense of his own life. If it is found that he was free from fault and was placed in peril of his life by the felonious attack of the other and would have suffered death or great bodily injury had he not used deadly force in his own defense, justification has been established. But it is not a crime which is justified. Since there was justification for the homicide no crime was committed. A crime may be committed under circumstances of mitigation. In such a case the deed constitutes a crime although the authorities may be warranted in foregoing prosecution or in inflicting a penalty much milder than would otherwise be used. But it is contradiction to speak of justification or ex- cuse for crime. Question 7: I have a friend who divorced her former husband last winter and plans to marry another man this summer. The statute of her state forbids either party to marry again "within six months from the date of the filing of said decree," and punishes a violation of this law by a pen- alty which may be as severe as six months in jail.
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